In an earlier post, we discussed how a prosecutor serves a dual role in the grand jury - that of prosecutor AND judge/legal advisor. So, during grand jury proceedings, prosecutors have "a duty of fair dealing to the accused." This duty of fair dealing encompasses an obligation to ensure fairness in grand jury submissions, which includes notice of the grand jury proceedings that gives a defendant a reasonable opportunity to exercise his right to testify.
What happens when this right is violated?
CPL Article 190 governs grand jury proceedings, and CPL 190.50 discusses the defendant testifying at the grand jury. The right to testify is a statutory one. Under CPL 190.50 (5)(c), a defendant may move to dismiss an indictment on the grounds that he was denied the opportunity to testify before the grand jury. However, this motion must be made within 5 days of the arraignment on the indictment or else it is considered waived.
Also, if defendant's attorney deprived the defendant of this right, this can be considered ineffective assistance of counsel. While counsel may advise a defendant not to testify, actions of counsel that deprive a defendant of a meaningful opportunity to testify may constitute ineffective assistance. For example, if notice of opportunity to testify is provided to defense counsel, failure to timely make the defendant aware of such notice is ineffective representation. Additionally, in certain circumstances such as this, an otherwise untimely 190.50 motion may be filed outside of the 5 day window (ex. If defendant retains a new attorney).
Recently, the Appellate Division for the Third Department held that testifying before the grand jury is a critical stage of the criminal proceeding. The significance of this decision is huge when raising certain appellate issues. Regardless, the grand jury stage of the criminal case is tremendously important. If the defendant's right to testify was not "scrupulously protected" by the prosecutor and defense counsel, the indictment must be dismissed.
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